Planned Parenthood v. Casey

by Eric J. Segall, the Kathy and Lawrence Ashe Professor of Law, Georgia State University College of Law

Prior to the oral arguments in the 2013 same-sex marriage cases involving the federal Defense of Marriage Act (DOMA) and California’s Proposition 8, Supreme Court commentators committed to marriage equality debated just how fast the Court should act. On this blog, I urged the Court to strike down DOMA in the Windsor case but deny standing to the plaintiffs in the Prop 8 litigation in the hope that the logic of Windsor would lead lower federal courts to strike down state laws banning same-sex marriage. I advocated that approach fearful of the political backlash that would result from the Court creating a national rule imposing same-sex marriage on reluctant states in one bold strike.

Those who wanted the Court to act quickly had two substantial objections. First, the Court’s job is to decide cases “under the law” not to make political predictions and calculations about the effects of those decisions. Second, gays and lesbians should not have been forced to wait one more day before achieving the marriage equality they deserve.

Now that events have unfolded, it is important to address both of those objections (albeit with hindsight) because the arguments for and against the Court acting quickly on same-sex marriage shed important light on the appropriate role of the Supreme Court in our political system and how the Court should force important social change in the future.

So a new Pew poll finds a majority of Americans under 30 do not know what the landmark U.S. Supreme Court case, Roe v. Wade was all about. Well this month marks the 40th anniversary of that landmark decision, so maybe a few more of those under 30 will get a clue about a case that advanced liberty for women. They might also learn that Roe has been undercut by subsequent Supreme Court opinions, which have helped state lawmakers create and enact measures making it far more difficult for women to make decisions about their health.

The opinion issued on Jan. 22, 1973 invalidated a state law banning abortion. A majority of the court led by Justice Harry Blackmun found that the state ban on abortion violated personal privacy. Blackman wrote, in part, that a “right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state actions, as we feel it is, or as, the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

On Jan. 18 – 19 as part of the Constitution in 2020 project, several groups, including ACS, will host a conference examining two landmark Supreme Court cases, one being Roe, that helped advance liberty and equality for minorities. The conference at UCLA called “Liberty/Equality: the View from Roe’s 40th and Lawrence’s 10th Anniversaries,” will include some of the nation’s leading experts on gender, sexuality and equality to examine conflicts that led to the landmark decisions and look at how the current Supreme Court has handled ongoing debate over reproductive rights and equality for the LGBT community (The high court in Lawrence v. Texas invalidated a state law banning sex between consenting adults of the same gender.)

Dawn Johnsen, an ACS Board Member, will be among the participants at the Constitution in 2020 gathering. Johnsen (pictured), a distinguished law professor at Indiana University Maurer School of Law, authored an ACS Issue Brief in 2008 on the 35th anniversary of Roe. It’s a prescient piece, noting that challenges to reproductive rights were intensifying, partly because of high court decisions that followed Roe, which opened the door to more onerous restrictions on women’s autonomy.

As noted here recently Reva Siegel and Linda Greenhouse, writing for Balkinization’s Constitution in 2020 conference forum, suggested that a backlash to reproductive freedom was swelling even before Roe was handed down. But in her ACS Issue Brief, Johnsen noted that the setbacks to Roe really got underway with the high court’s 1992 Planned Parenthood v. Casey opinion.

Twenty years ago this month, a bitterly divided Supreme Court handed down Planned Parenthood v. Casey, one of the most important opinions delivered by the Court on the meaning of the Constitution’s protection of liberty and equality for all Americans. In a landmark joint opinion, authored by Justices Anthony Kennedy, Sandra Day O’Connor, and David Souter, a narrow five-Justice majority reaffirmed what they called the “essential holding of Roe,” beating back a twenty-year assault on the Supreme Court’s decision in Roe v. Wade and the notion that the Constitution protects substantive fundamental rights not enumerated elsewhere in the Constitution. In the process, the Justices rooted protection of a woman’s right to reproductive choice, not in a generalized right of privacy as Roe had, but in a woman’s right to bodily integrity, to personal liberty, and to equal citizenship. (For more discussion, see CAC’s Crossroads Chapter on Reproductive Freedom). As a senior in college at the time, I had the incredibly good fortune of working on the legal team representing Planned Parenthood at the Supreme Court – alongside brilliant and courageous attorneys Kitty Kolbert and Linda Wharton – and to this day my work on Casey is still one of the proudest moments of my career in the law.

Casey’s understanding of constitutional protection for personal liberty and equality drew on the Court’s precedents going back 70 years and the doctrine of stare decisis. The joint opinion forcefully demonstrated that keeping faith with the Court’s precedents required reaffirming constitutional protection for a woman’s right to reproductive choice, while the dissenters argued that these precedents had to be jettisoned. Two decades later, thanks to the work of Jack Balkin, Reva Siegel, Dawn Johnsen and others, there is more basic foundation of support for Casey’s understanding of fundamental constitutional principles: the Constitution’s text and history. Contrary to conventional wisdom, both Casey’s analysis of the protection of substantive fundamental rights and of gender equality has deep roots in our Constitution’s text and history. Supporters of Roe and Casey should embrace these sources – just as much as precedent – in defending a woman’s right to reproductive freedom against attacks by conservatives.

In Gonzales v. Carhart, a challenge to the federal Partial-Birth Abortion Ban Act, Justice Kennedy had an opportunity to reaffirm that women are persons of full constitutional stature, possessing the capacity to make responsible choices about spiritual imperatives. This was how women were portrayed in an opinion joined by Kennedy in Planned Parenthood v. Casey. Instead, in Carhart, Kennedy described women as vulnerable persons needing State protection against decisions they might come to regret. Moreover, while the capacity for regret is generally associated positively with moral agency, Kennedy defined the regret that women might experience after deciding to have an abortion as a psychological phenomenon associated solely with depression and low self-esteem, psychological states that might justify state regulation of women’s liberty.

The Supreme Court’s refusal to entertain a facial constitutional challenge to the Partial-Birth Abortion Ban Act was an obvious loss for women seeking to preserve their right to make choices about pregnancy. That refusal, however, was based on an assertion that there was, as yet, no evidence that the statute would prohibit “the vast majority of D&E abortions,” or would be “a substantial obstacle to late-term, but previability, abortions,” or would subject women to significant health risks. Far more significant was Kennedy’s framing of regret as a sign of vulnerability rather than as evidence of a capacity for moral agency that undergirds and should be protected as a key component of personal liberty. His suggestion that protecting women from regret is a legitimate basis for state incursions on women’s liberty inflicts a serious harm. (Imagine, for example, the likely uproar were the Supreme Court to suggest that government has a legitimate interest in regulating guns because of the possibility that a gun owner might suffer regret – defined as low self-esteem and depression – after lawfully using his weapon to shoot another.) Carhart thus serves up a second loss, to all women.

Activists hope to once again make Nebraska the battleground over whether the Supreme Court should reaffirm its 1973 decision in Roe v. Wade, recognizing a woman's right to an abortion. Just introduced in Nebraska's unicameral legislature is a bill acknowledged by advocates on both sides of the issue to be unconstitutional under the Court's present jurisprudence.

The state has played a role on the national stage before, with a 1997 law banning the controversial late-term procedure known medically as intact dilation and extraction, or D&X.

The U.S. Supreme Court in 2000 overturned that Nebraska law, upholding its previous abortion decisions and dealing a setback to abortion opponents, who call the procedure "partial-birth" abortion.

Those opponents gained hope seven years later, when the justices on a more conservative Supreme Court upheld a federal ban on the D&X procedure.

Now abortion opponents are looking for opportunities to push the court even further in restricting abortion.

The law would ban abortions after 20 weeks, disregarding the question of viability, which occurs around the 24th week of pregnancy and was relied upon as a boundary for state regulation in the Supreme Court's 1992 Planned Parenthood v. Casey decision. In Casey, today's swing-vote Justice Anthony Kennedy co-wrote the majority opinion, joined by the liberal wing of the court. The Center for Reproductive Rights' Janet Crepps told the World Herald that this is reason for comfort to the pro-choice community, although Justice Kennedy joined the conservative wing of the Court in its two most recent decisions regarding reproductive rights.